Lawrence and Lawrence (No 2)

[2015] FamCA 378

FAMILY COURT OF AUSTRALIA

LAWRENCE & LAWRENCE (NO 2) [2015] FamCA 378

FAMILY LAW – PARENTING – Interim application – Where there are three children to the relationship – Where there is poor communication between parents – Where two of the children have serious medical needs – Where the mother seeks responsibility regarding the determination of medical treatment of the children – Where the mother seeks orders that the children’s time with the father be suspended – Where the ICL does not recommend any changes at the present time – Best interests of the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lawrence

RESPONDENT: Mr Lawrence

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Sydney

FILE NUMBER: SYC 8138 of 2014

DATE DELIVERED: 9 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 9 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Macpherson & Kelley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE ICL: Legal Aid NSW, Sydney

Orders

1. That the parenting aspects of the interim proceedings are stood over before a Registrar in a duty list on 13 July 2015 at 9.30am and later before a Judge for possible interim hearing.

1. That, pending further order of the court, the mother is to have the sole responsibility for decisions relating to the medical treatment of the children. The mother is to give five (5) days’ notice of any proposed treatment, to the father and to the Independent Children’s Lawyer, and she shall consider the responses they might make.

1. That, in the event there are any difficulties in respect of any proposed medical treatment, liberty is granted to the father and to the Independent Children’s Lawyer to relist the matter upon giving forty-eight (48) hours’ notice by arrangement with my Associate via email.

1. That Order 10 made by Justice Loughnan on 23 January 2015 is varied by the addition of the words ‘or to provide to the children’s school a copy of Orders made by the court from time to time in relation to the children’. 

1. That I adjourn the financial aspects of the interim proceedings to the duty list before me on 13 April 2015 at 10am.  On that occasion both parties are to prepare a skeleton case outline setting out the figures upon which they propose to base their submissions.

1. That both parties have leave to file affidavit material upon which they wish to rely on or before 2 April 2015.

1. That the costs of both parties of today are reserved and shall be dealt with on 13 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawrence & Lawrence has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8138 of 2014

Ms Lawrence

Applicant

And

Mr Lawrence

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings were before Loughnan J on 23 January 2015 when by consent, a number of orders were made.  Those orders provided that the three children live with Ms Lawrence (“the mother”) and that the two elder children, D and E, spend time with Mr Lawrence (“the father”) per further order of the Court or as the parties may agree.  The youngest child, G was to spend time with the father from 9.00 am to 6.00 pm each Sunday.   That contact has been occurring. 

2. The mother now seeks to vary those orders, so as to remove the order for G to spend time with the father on the basis that G is scared of the father and does not want to go with him.  Affidavits detailing the case against the father in that respect were sworn on 4 March 2015 and filed and served on 5 March 2015, so that the father has effectively had no time in which to respond to them.

3. Three matters have emerged.  The first is that the parties are to attend on Dr H on 26 March 2015 for the purpose of preparing a report for the benefit of the Court.  That is a significant matter and, no doubt, the Court will be significantly assisted by the content of Dr H’s report.

4. Secondly, the Independent Children’s Lawyer (“ICL”) has spoken to each of the children and she does not recommend any change at the present. 

5. Thirdly, however, an issue has arisen in relation to the medical treatment of D, who suffers from anorexia nervosa.  It appears that the parties have been attempting to agree on a course of treatment and who the practitioner is to be to provide that treatment. 

6. Treatment is also proposed for E, who has been suffering from suicidal ideation. Dr I has been proposed as the treating doctor for Ewan for that purpose.  Counsel for the father informed the Court that there is no opposition to Dr I providing that treatment.  No explanation was given as to why that decision had not previously been transmitted to the wife or to the wife’s lawyers. 

7. There is obviously a considerable degree of poor communication between the parents.  I, of course, in an interim hearing, not having heard the parties, cannot work out who is responsible for that.  The fact of it remains that in these circumstances the mother, who has the primary care of the children, says that at least as an interim measure she should be given the responsibility for determining medical treatment.  She is supported in that by the ICL.

8. There was, in a sense, no real opposition to that order, provided that the mother was obliged to notify the father and the ICL of proposed treatment, to consider the father’s response, if any, before making the decision, and to give the parties liberty to apply.  That seems to be a sensible way of dealing with that issue, pending the final hearing.

9. The other issue that arises is that on 23 January 2015 Loughnan J made an order that neither party contact the school where the children may attend other than in a routine manner. It is appropriate to vary Order 10 to add the words:

   ‘or to provide to the children’s school a copy of Orders made by the court from time to time in relation to the children’

10. It is appropriate on those conditions to adjourn the parenting aspect of the matter until after the provision of Dr Rikard-Bell’s report and I will do that shortly.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 9 March 2015.

Associate:  K Bullard

Date:  25 May 2015